Adhiambo v Kenya School of Law & another (Tax Appeal E044 of 2026) [2026] KELEAT 18 (KLR) (17 July 2026) (Judgment)

 REPUBLIC OF KENYA IN THE TRIBUNAL OF KENYA AT NAIROBI COUNTY COURT NAME: LEGAL EDUCATION APPEALS TRIBUNAL CASE NUMBER: LEAA/E044/2026 GLORIA VS KENYA SCHOOL OF LAW AND COUNCIL OF LEGAL EDUCATION # JUDGMENT **A. Introduction and Background** 1. This Appellant, GLORIA OMIA ADHIAMBO, lodged this appeal against thedecision of the Kenya School of Law (the Respondent) declining her admission to the Advocates Training Programme (ATP) for the 2026/2027 academic year. The Council of Legal Education is joined as the Interested Party. 1. The appeal is founded on the Memorandum of Appeal dated 4th March2026, supported by an affidavit sworn by the Appellant on even date, together with annexures marked "GAO-1" to "GAO-6". 1. The Appellant sat the Kenya Certificate of Secondary Education (KCSE) examination in November 2010, attaining a mean grade of C (Plain), with a grade of B- in both English and Kiswahili. 1. In March 2012 the Appellant enrolled for a Diploma in Law at Mount KenyaUniversity, School of Law, which she completed on 25th July 2014, graduating with a Credit II. 1. On the strength of her diploma results, the Appellant was admitted topursue a Bachelor of Laws (LLB) degree at Mount Kenya University vide an admission letter dated 16th January 2016, and on 6th December 2019 graduated with Second Class Honours (Lower Division). 1. On or about January 2026, the Appellant applied to the Respondent foradmission into the ATP for the 2026/2027 academic year. By letters dated 4th February 2026 and 16th February 2026, the Respondent declined her application and her subsequent internal appeal, on the ground that she did not meet the minimum KCSE grade requirement under Section 16 of the Kenya School of Law Act, Chapter 16C, as read together with paragraph 1(b)(ii) of the Second Schedule thereto. 1. Aggrieved by the decision of the respondent, the Appellant filed the instantappeal, contending, that the Respondent's reliance on Section 16 of the Kenya School of Law Act was no longer tenable in light of the decision of the Court of Appeal in *Stephen Nikita Otinga v Cabinet Secretary, Ministry of Education & 3 Others* [2025] KECA 460 (KLR), in which the said section was declared unconstitutional. 1. The Appellant accordingly seeks orders that the Respondent's decisions of4th February 2026 and 16th February 2026 be set aside; a declaration that her application falls to be determined under Section 8(3)(c) of the Legal Education Act, 2012 and the applicable Regulations; recognition of her prior relevant learning; an order compelling the Respondent to admit her to the ATP for the 2026/2027 academic year; and costs of the appeal. 1. The Respondent opposed the appeal through a Replying Affidavit sworn byLawrence Ndirangu, on 7th May 2026 arguing that Section 16 of the Kenya School of Law Act remains the applicable and **exclusive** basis for admission to the ATP, and that Otinga merely *interpreted*, rather than invalidate the eligibility criteria under Section 16 as read with paragraph 1 of the Second Schedule; 1. It is the respondent’s case that admission to ATP requires a mean grade ofC+ (plus) in KCSE with a B (plain) in English or Kiswahili, a threshold the Appellant did not meet; 1. The respondent argued that the Kenya School of Law Act contains noprovision recognising academic progression as a basis for ATP admission. 1. The respondent further contested the jurisdiction of the Tribunal, assertingthat the jurisdiction of the Tribunal is confined to matters arising under the Legal Education Act, 2012; 1. The Interested Party, opposed the appeal on the basis that it bearsstatutory responsibility under Sections 8 and 21 of the Legal Education Act for setting and upholding standards in legal education, including the ATP, and that this mandate is exercised through, among other frameworks, the Kenya School of Law Act. 1. It contended that it remains in full compliance with the decision in *Otinga*, which it construes as having affirmed rather than diminished its exclusive mandate under Section 8(3)(a) of the Legal Education Act to formulate ATP admission requirements, a mandate it is presently exercising through an ongoing rule-making process to develop new ATP regulations, guided by legality, proportionality, and fairness. 2. On academic progression, the Interested Party submitted, that progressioninto the ATP is not automatic but subject to lawful regulatory thresholds; that its power to determine the equivalency and suitability of qualifications for ATP purposes survives the multiple pathways recognised under Section 22 of the Legal Education Act; and that, as the statutory body responsible for legal education standards, it is best placed to assess whether the Appellant's academic record satisfies those thresholds. B. Parties’ Submissions 1. In her submissions the Appellant relied on Kenya School of Law v Wamuyu;CLE (Interested Party) (Civil Appeal E062 of 2022) [2024] KEHC 499 (KLR) and the Kenya School of Law v James Muchiri & 2 Others; CLE, HCCA No. E166 of 2022, to support her argument on the jurisdiction of the Tribunal. She anchored this in Section 31 of the Legal Education Act and in Otinga's holding that the Legal Education Act is "the framework of legal education and training in Kenya, including training in ATP," such that ATP admission disputes are necessarily matters "relating to" that Act. 1. **On the exclusivity of Section 16**, she submitted that Otinga (Civil Appeal E625 of 2023, delivered on 7th March 2025) declared Section 16 of the KSL Act and its Second Schedule "inconsistent, null and void" for violating the CLE's Section 8(3)(c) mandate to formulate a system recognising prior learning. She invoked the retrospectivity principle in Mary Wambui Munene v Peter Gichuki King'ara & 2 Others [2014] eKLR (citing A v Governor of Arbour Hill Prison), that judicial decisions apply to pending cases and the Tribunal's own prior decision in LEAA/E001/2025: Antony Wangila Rakula v KSL & CLE, said to have applied Otinga to nullify a Section 16 based rejection. 1. **The Appellant submitted** that, independent of Otinga, two doctrines pre-date it: (a) equation of qualifications must occur at the point of entry into the LLB programme, not after graduation, citing Allan Mbondo Kioko & 21 Others v KSL and CLE, Constitutional Petition E250 of 2021 (26th May 2022); and (b) the doctrine of "crystallized rights/action," fixed as at the date of admission to the LLB programme (16th January 2016), citing Chelangat v KSL; CLE and Mark Jermaine Syuki v CLE & KSL (Njoroge J, Mombasa, 27th January 2025). 1. **On Section 8(3)(c) LEA,** she pointed to the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 (Regulations 5 and 6), which permitted admission to an LLB via a Credit Pass in a diploma in law, and required "proof of academic progression" for ATP admission. She acknowledged these Regulations were later invalidated in Javan Kiche Otieno & Another v CLE & Another, Petition No. 20 of 2016 (Odero J, 30th January 2018), upheld on appeal, for non-compliance with Section 14 of the Statutory Instruments Act, but submitted the invalidity does not unwind "crystallized actions" taken while the Regulations were in force, i.e., her 16th January 2016 admission to the LLB 1. She alleged bad faith on the Respondent's part in selectively applyingSection 16 while ignoring this judicially-sanctioned criteria, and closed by submitting that Otinga's nullification of Section 16 removes the sole basis on which she was refused admission, entitling her to be admitted forthwith. 1. The Respondent submitted that the Tribunal is a creature of statuteestablished under the Legal Education Act, whose jurisdiction under Section 31 thereof is confined to matters "relating to this Act," and that the present dispute, arising as it does from Section 16 of the KSL Act, falls outside the scope of that jurisdiction. Reliance was further placed on Section 17 of the KSL Act, which imposes upon the Respondent the duty to consider an application and, if satisfied, to admit the applicant, in support of the submission that the Appellant was, in substance, inviting the Tribunal to usurp the statutory discretion vested in the Respondent under Section 17(2). 1. The Respondent invoked the decision in *Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] eKLR* on the limited, nonappellate character of judicial and tribunal review, and cited *Kenya School of Law v Isaiah Munoru Mucheke, HCCA/E002/2023,* said to have held squarely that the jurisdiction of the Tribunal derives solely from the Legal Education Act and does not extend to disputes concerning admission criteria under the KSL Act, and that the Tribunal had accordingly acted without jurisdiction in a comparable prior matter. 1. Without prejudice to the foregoing objection, the Respondent proceeded toaddress the merits of the appeal. 1. On the interpretation of Paragraph 1 of the Second Schedule to the KSLAct, the Respondent, invoking the golden rule of statutory interpretation and relying upon the decision in *Nairobi Civil Appeal No. E472 of 2021*, submitted that sub-paragraphs 1(a) and 1(b) fall to be read conjunctively, being separated only by a semicolon and both subject to the conditions set out in the romannumeral provisos. On this construction, it was contended that the threshold requirement of a mean grade of C+ (plus) or a B (plain) at the Kenya Certificate of Secondary Education ("KCSE") applies irrespective of whether the applicant's degree was obtained locally or abroad, and that the carve-out implied by the Appellant could not be sustained. 1. On the question of legitimate expectation, the Respondent, relying on the same decision *in E472 of 2021*, submitted that the Court of Appeal had already pronounced upon and rejected the proposition that mere completion of the LLB degree, without regard to KCSE grades, gives rise to eligibility for admission to the ATP. It was submitted that the Court of Appeal had characterised such an approach as unrealistic and unreasonable, and as itself discriminatory against graduates trained in foreign jurisdictions. 1. On procedural fairness, the Respondent maintained that the processleading to the impugned decision was fair and timely, and did not offend Article 47 of the Constitution or the right to education guaranteed under Article 43(1)(f), again relying on the decision in E472 of 2021. 1. The Respondent further submitted that the KSL Act, as amended by theStatute Law (Miscellaneous Amendments) Act No. 18 of 2014, makes no provision for academic progression, and relied upon the reasoning in *E472 of 2021* to the effect that a diploma or degree unrelated to law cannot be counted as progression towards a legal qualification, and that even the holding of a diploma in law does not dispense with the primary requirement as to KCSE grades. 1. The Respondent characterised the effect of Otinga decision as directingthe Council for Legal Education to formulate regulations governing admission to the ATP, and submitted that a regulated body such as the Kenya School of Law remains at liberty to prescribe standards more stringent than any regulatory minimum. The Respondent reproduced the specific prayers granted "as prayed" in *Otinga* and submitted that each declaration therein was qualified in scope, limited, for instance, to the extent that the impugned provisions purported to prescribe requirements for programmes other than the Kenya School of Law's own ATP, or to the extent that they purported to contradict Section 8(3) of the Legal Education Act. 1. The Respondent submitted that the burden lay upon the Appellant toestablish that Section 16 of the KSL Act and its Second Schedule fell within the qualified scope of those declarations, for instance, by demonstrating that the Kenya School of Law had issued its own competing regulations on academic progression, and that no such showing had been made. On this construction, the *Respondent urged that the decisions in Otinga, Richard Otene Akomo, and E472 of 2021* ought to be read together as defining the limits within which the Kenya School of Law remains entitled to prescribe its own KCSE-based admission criteria for its ATP, rather than as effecting a wholesale nullification of Section 16. 1. The Interested Party submitted that the Court of Appeal's decision in*Otinga v Cabinet Secretary, Ministry of Education & 3 others [2025] KECA 460*, which nullified section 16 and the Second Schedule of the Kenya School of Law Act, had a narrow and purely eliminative effect: it removed the KCSE meangrade requirement as a standalone bar to admission, but did not create a positive entitlement to admission or invalidate all other lawful admission criteria. CLE argues the Appellant must still demonstrate compliance with remaining valid requirements, particularly proof of relevant academic progression, and that the decision-maker may sustain a decision on any surviving valid ground even where one ground has been struck down. 1. Relying on *Kenya School of Law v Akomo & 41 others [2022] KECA 1132,* CLE submited that this precedent is binding and establishes that "progression" toward legal training under section 8(3)(c) of the Legal Education Act requires prior learning or experience that is substantively legal in nature, a "diploma in law or related course in law." A generic diploma unrelated to law cannot qualify. To the Interested Party, the Appellant bears the burden of proving her diploma meets this threshold. 1. CLE contends the Appeal against it is fatally misconceived because CLEand KSL are separate body corporates established under different statutes (Legal Education Act and Kenya School of Law Act respectively) with distinct mandates, CLE as regulator/standard-setter, KSL as the operational training provider. To CLE admission decisions are KSL's operational responsibility, not CLE's, and CLE should not be penalised for KSL's alleged operational failures. 1. CLE invites the Tribunal to exercise its wide discretion under section 27 ofthe Civil Procedure Act judiciously, citing *R v Rosemary Wairimu Munene* (costs not meant to penalise or purely compensate) and the English authority *Scherer v Counting Instruments Ltd [1986] 1 WLR 615* for the principle that costs, while normally following the event, remain a matter of judicial discretion exercised on relevant, case-connected grounds. **C. ANALYSIS AND DETERMINATION** 1. Having considered the Memorandum of Appeal, the Supporting Affidavit, theReplying Affidavits of the Respondent and the Interested Party, and the parties' written submissions, the Tribunal considers the following issues for determination: * 1. **Whether this Tribunal has jurisdiction to hear this appeal.** * 1. **Whether the Appellant is eligible for admission to the AdvocatesTraining Programme**, * 1. **Whether this Tribunal has jurisdiction to hear this appeal.** 1. This issue is logically anterior and must be resolved first, since a finding ofwant of jurisdiction disposes of the appeal without recourse to the merits. 1. The rival positions are sharply drawn. The Appellant says Section 31 of theLegal Education Act confers jurisdiction over "any matter relating to this Act," and that Otinga's holding that the Legal Education Act is the governing framework for all legal training, including the ATP, brings this dispute within that provision. The Respondent says the Tribunal is a creature of statute with only the jurisdiction expressly conferred on it; that the impugned decisions were made under Section 16 and Section 17 of the Kenya School of Law Act, not the Legal Education Act; and that this distinction was decisive in Kenya School of Law v Isaiah Munoru Mucheke, HCCA/E002/2023, where the High Court is said to have found Tribunal acted without jurisdiction over a KSL Act admission dispute. 1. We must reconcile these positions with care, since they cannot both be correctas stated. Two observations bear on how that reconciliation should proceed: 1. First, the characterisation of the dispute matters. A refusal by the Respondentto admit an applicant is, on its face, an act taken under the Respondent's own establishing statute (the KSL Act). But the *legal basis advanced for that refusal* here, the Respondent's construction of Section 16 of the KSL Act as against the CLE's Section 8(3)(c) mandate under the Legal Education Act necessarily requires the Tribunal to interpret the interaction between the two statutes. It would be an unusual result if a body could insulate its decisions from Tribunal’s Section 31 jurisdiction merely by locating its enabling provision in a different statute, when the substance of the dispute turns on the correct application of the Legal Education Act framework that, per Otinga, governs the ATP. 1. In our view the language of Section 31 of the Legal Education Act is broad,extending to "any matter relating to this Act." The decision in *Otinga,* even upon the qualified reading urged by the Respondent, confirms that the framework established under the Legal Education Act, including the mandate conferred upon the Council for Legal Education under Section 8(3)(c), bears directly upon admission to the Advocates Training Programme. A dispute as to whether Section 16 of the Kenya School of Law Act can lawfully operate so as to exclude that framework is, in substance and in law, a matter relating to the Legal Education Act. 1. The present appeal concerns admission into the Advocates TrainingProgramme, and raises questions touching upon the interpretation and application of the statutes governing legal education in Kenya, as well as the constitutional validity of the admission criteria applied within that framework. The Tribunal finds that the matter falls squarely and unambiguously within the jurisdiction conferred upon it by the Legal Education Act. The Tribunal is accordingly properly seized of the matter and is competent to grant the relief sought. The preliminary objection is, for these reasons, dismissed. * 1. **Whether the Appellant is eligible for admission to the AdvocatesTraining Programme**, 1. This is the central substantive dispute, and the record shows the parties donot merely disagree on the law, they disagree on what Otinga actually decided. 1. The Appellant's position, in its simplest terms, is that the Court of Appeal inOtinga declared Section 16 of the KSL Act and its Second Schedule null and void, and that this declaration of nullity operates retrospectively so as to apply to her applications of 4th February 2026 and 16th February 2026, both of which were pending, or subject to internal appeal, well after the judgment was delivered. The Respondent's position, as reflected in its two rejection letters, is more granular: it maintains, in effect, that admission to the ATP remains governed by the KCSE grade threshold under the Second Schedule to the KSL Act, notwithstanding the Otinga decision, without offering any reasoned basis in either letter for why that threshold survives the declaration of invalidity. 1. As regards the Court of Appeal decision in Otinga, the operative order reliedupon by the Appellant, at paragraph 41 of the judgment, declares Section 16 of the KSL Act and its Second Schedule inconsistent with the Constitution, and consequently null and void, for violating the mandate conferred upon the Council of Legal Education under Section 8(3)(c) to formulate a system for the recognition of prior learning. This is an unqualified declaration of invalidity on that specific ground, and is not attended by any "in so far as" or similarly limiting language. The Respondent's letters of 4th February 2026 and 16th February 2026, by contrast, rejected the Appellant's application squarely and exclusively on the basis that she "did not meet the minimum grades in KCSE" and "does not meet the threshold for KCSE grades," that is, on the precise statutory basis that Otinga had already declared null and void. This position cannot be reconciled with the decision in Otinga. 1. The Tribunal has given due consideration to the possibility that theRespondent may lawfully prescribe admission standards independent of Section 16, whether under its own internal policy or otherwise. That possibility cannot, however, avail the Respondent in the present case, as neither the letter of 4th February 2026 nor that of 16th February 2026 makes any reference to an alternative or independent basis for rejecting the Appellant's application; each rests solely on the invalidated KCSE threshold. The Tribunal's own prior determination in LEAA/E001/2025: Antony Wangila Rakula v Kenya School of Law & Council for Legal Education lends further support to this conclusion. 1. It follows that the Respondent's decisions of 4th February 2026 and 16thFebruary 2026 were made in reliance on a statutory provision that had, by the time both decisions were rendered, already been declared unconstitutional and void by the Court of Appeal in Otinga. The Respondent's persistence in relying on that invalidated provision, indeed, its repetition of the very same ground on reconsideration, after the Appellant had expressly drawn Otinga to its attention, renders both decisions unlawful and unsustainable. 1. The Tribunal accordingly finds that the decisions of 4th February 2026 and16th February 2026 cannot stand, and must be set aside. This does not, however, without more, entitle the Appellant to automatic admission; her eligibility must, as this Tribunal has already determined in similar fact cases before it, be assessed afresh against the framework that legitimately governs in the absence of the invalidated provisions, that is, the 2009 Regulations, having regard to her academic qualifications and progression. 1. The eligibility criteria for admission to the ATP are prescribed underParagraph 5 of Part II of the First Schedule to the 2009 Regulations. Paragraph 5 provides that a person shall not be eligible for admission to the ATP unless that person has — * + 1. *passed the relevant examination of any recognised university inKenya and holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) of that university;* * + 1. *passed the relevant examinations of a prescribed university orinstitution, holds or has become eligible for the conferment of the LLB, and had, prior to enrolling at that institution, attained the minimum university entry requirements and a minimum grade of B (plain) in* *English and a mean grade of C+ in KCSE or its equivalent;* * + 1. *holds an LLB from a recognised university and attained a minimumgrade of C+ in English and a minimum aggregate grade of C (plain) in KCSE, and additionally holds a higher qualification such as 'A' levels, an International Baccalaureate, a relevant Diploma, another undergraduate degree, or has attained a higher degree in law; or* * + 1. *holds an LLB from a recognised university and attained a minimumgrade of C- in English and a minimum aggregate grade of C- in KCSE, and sits and passes the Pre-Bar Examination set by the Council of Legal Education as a precondition for admission.* 1. Applying Paragraph 5 of Part II of the First Schedule to the 2009 Regulations to the facts of this case, the Tribunal considers the Appellant's academic record against each of the four limbs in turn. 1. Limb one does not avail the Appellant, as it applies to a candidate whoproceeded directly to the LLB degree at a recognised Kenyan university without reference to a prior diploma or prescribed-institution pathway; the Appellant's academic history, involving prior enrolment in a Diploma in Law, takes her outside the scope of this limb. 1. Limb two likewise does not avail the Appellant. That limb requires a candidatewho proceeded through a "prescribed university or institution" to have attained, prior to enrolment, a minimum grade of B (plain) in English and a mean grade of C+ in KCSE. The Appellant attained a mean grade of C (Plain) — one grade below the required C+ — and, while her grade of B- in English falls just short of the stipulated B (plain), it is the shortfall in her mean grade that is decisive. She does not, therefore, qualify under this limb. 1. Limb three however, is squarely satisfied on the record before the Tribunal.This limb requires that a candidate (a) hold an LLB from a recognised university; (b) have attained a minimum grade of C+ in English; (c) have attained a minimum aggregate grade of C (plain) in KCSE; and (d) additionally hold a higher qualification, such as a relevant Diploma. The Appellant holds an LLB (Second Class Honours, Lower Division) from Mount Kenya University, a recognised university; she attained a grade of B- in English, which exceeds the minimum C+ threshold prescribed; she attained a mean grade of C (Plain) in KCSE, meeting the minimum aggregate required; and she additionally holds a Diploma in Law (Credit II) from the same institution, obtained prior to her enrolment in the LLB programme. All four conjunctive requirements of limb (iii) are accordingly met. 1. Limb four is not applicable, as it is confined to candidates with lower KCSEand English grades (C- and C- respectively) who are additionally required to sit and pass the Pre-Bar Examination; the Appellant's qualifications exceed this threshold and are properly assessed under limb (iii). 1. The Tribunal accordingly finds that the Appellant satisfies the eligibilitycriteria prescribed under Paragraph 5(iii) of Part II of the First Schedule to the 2009 Regulations, by reason of her LLB from a recognised university, her grade of B- in English, her mean grade of C (Plain) in KCSE, and her additional qualification of a Diploma in Law. She is, on this basis, eligible for admission to the Advocates Training Programme. 1. Having determined Issue No. (ii) in the Appellant's favour, it follows that theremaining issues raised by the parties, including those on misjoinder, constitutional violation, legitimate expectation, and crystallized rights, become academic. We accordingly decline to make any determination on them, and nothing in this judgment should be read as expressing a view, express or implied, on their merits. **D. DISPOSITION** In the circumstances, the Tribunal proceeds to make the following orders: 1. That the appeal by GLORIA OMIA ADHIAMBO against the decision of theRespondent is hereby allowed and the impugned decision is quashed. 1. That pursuant to Section 35 of the Legal Education Act, 2012, a declarationis hereby issued that the Appellant, GLORIA OMIA ADHIAMBO, is eligible for admission to the Advocates Training Programme by dint of Paragraph 5(c) of the First Schedule to the Council of Legal Education (Kenya School of Law) Regulations, 2009, and the Respondent is ordered to admit her to the Advocates Training Programme forthwith. 1. That each party shall bear its own costs of the appeal. 1. That a party aggrieved is at liberty to appeal to the High Court underSection 38(1) of the Legal Education Act, 2012, on a point of law. It is so ordered. 1. **HON. JULIANA NJIRIRI — CHAIR** 2. **HON. JOSHUA NGULU — MEMBER** 3. **HON. FELIX OKETCH — MEMBER** 4. **HON. MOSES MUNOKO — MEMBER** 5. **HON. GODANA YATANI — MEMBER** **DATED AT NAIROBI THIS 17TH DAY OF JULY 2026** **2 |** Page SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON. JULIANA WAMAITHA NJIRIRI** **VINCENT GODANA YATANI** **FELIX OTIENO OKETCH** **MOSES SITATI MUNOKO JOSHUA MBINDA NGULU** Legal Education Appeals Tribunal Legal Education Appeals Tribunal Date: 2026-07-22 11:26:24 |